Chandler v. Hutchinson

IN THE COURT OF APPEALS OF IOWA

No. 24-0471
Filed January 9, 2025

CODY CHANDLER,
Plaintiff-Appellant,

vs.

JORDAN R. HUTCHINSON, in his capacity as Administrator of the Estate of
Ronald Wesley Maly,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan,

Judge.

The plaintiff appeals the district court’s award of costs following a defense

verdict in a personal-injury action. AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED WITH DIRECTIONS.

Nathan Vos of Vos Law Firm, PLC, West Des Moines, for appellant.

Danielle E. Holmes and Jack W. Leverenz of Carmoney Law Firm, PLLC,

Urbandale, for appellee.

Considered by Schumacher, P.J., and Badding and Chicchelly, JJ.
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SCHUMACHER, Presiding Judge.

Cody Chandler appeals the award of costs following a defense verdict in a

personal-injury action. Chandler claims the district court abused its discretion by

taxing him the cost of an expert-witness deposition, a portion of the cost of his own

deposition, and an expert-witness fee. Upon our review, we affirm in part, reverse

in part, and remand with directions.

I. Background Facts and Prior Proceedings

In 2020, Cody Chandler and Ronald Maly were involved in a motor vehicle

accident.1 Chandler sued Maly’s estate seeking damages. The estate filed a

designation of witnesses, identifying expert Dr. Trevor Schmitz and plaintiff

Chandler. Counsel participated in a video deposition of Dr. Schmitz, preserving

his testimony for trial. The matter proceeded to a jury trial.

Chandler requested to play only the cross-examination of Dr. Schmitz’s

deposition for the jury as part of his case in chief. The estate resisted Chandler’s

request. In the alternate, the estate requested that if Chandler was allowed to use

the defense expert deposition, that the full deposition be played. Relying on Iowa

Rule of Civil Procedure 1.705(1),2 the district court ordered “if [Chandler is going

to play part of it], then we’ll play the entire deposition.” Chandler elected to play

the entire deposition for the jury in his case in chief.

The jury returned a verdict finding Maly was not “a cause of any item of

damage to [Chandler],” and the district court dismissed the case. The estate filed

1 Maly passed away later that year.
2 That rule provides, “If a party offers only part of a deposition, any other party may

require an offer of all of the deposition relevant to the portion offered, and any other
party may offer other relevant parts.” Iowa R. Civ. P. 1.705(1).
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a bill of costs, requesting that the court award $2592.48 in costs, which included

Dr. Schmitz’s deposition of $852.88, Chandler’s deposition of $489.60, and

Dr. Schmitz’s expert-witness fee of $1250. Chandler resisted. The district court

entered an order awarding the estate $852.88 for Dr. Schmitz’s deposition fee,

$100 for Chandler’s deposition fee, and $150 for Dr. Schmitz’s expert witness fee.

Chandler appeals.

II. Standard of Review

We review the district court’s decision to deny or award fees for an abuse

of discretion. K.C. v. Iowa Dist. Ct., 6 N.W.3d 297, 301 (Iowa 2024); see Pierce v.

Nelson, 509 N.W.2d 471, 473, 475 (Iowa 1993) (reviewing a district court’s

determination of the reasonableness of expert witness deposition fees for an

abuse of discretion). “An abuse of discretion occurs when a court’s ruling is based

on grounds that are unreasonable or untenable, or when the record lacks

substantial evidence to support the court’s conclusion.” K.C., 6 N.W.3d at 301

(cleaned up).

III. Discussion

“Costs shall be recovered by the successful party against the losing party.”

Iowa Code § 625.1 (2022). Iowa Code section 625.14 authorizes the clerk to “tax

in favor of the party recovering costs the allowance of the party’s witnesses, . . . the

necessary expenses of taking depositions by commission or otherwise, and any

further sum for any other matter which the court may have awarded as costs in the

progress of the action, or may allow.”

Our rules of civil procedure provide instruction for taxing deposition costs:

“The judgment shall award against the losing party only such portion of these costs
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as were necessarily incurred for testimony offered and admitted upon the trial.”

Iowa R. Civ. P. 1.716.

Case law also guides our decision. When assessing costs, the district court

uses a two-step decision-making process as a prerequisite for allowance of the

deposition expense. EnviroGas, L.P. v. Cedar Rapids/Linn Cnty. Solid Waste

Agency, 641 N.W.2d 776, 786 (Iowa 2002). The court first makes a factual finding

regarding whether the deposition was “introduced into evidence in whole or in part

at trial” and second, if it was, the court must then exercise its discretion to decide

if all or some portion of the cost was “necessarily incurred.” Id. (citation omitted).

Under this two-step process, we apply a two-tiered standard of review. See Sec.

State Bank v. Ziegeldorf, 554 N.W.2d 884, 893 (Iowa 1996) (adopting two

standards of review where court was required to make a factual finding as to

statutory prerequisite for allowance of attorney fees and then exercise discretion

as to amount of fees to allow).

In Cline v. Richardson, 526 N.W.2d 166, 169 (Iowa Ct. App. 1994), a panel

of this court held that it was an abuse of discretion for the district court to tax the

cost of the deposition where the transcript was used in only one instance to

impeach and the deposition transcript was not offered or admitted into evidence.

In two additional cases, we followed that reasoning to determine the trial court

abused its discretion. See Carson v. Rothfolk, No. 12-1021, 2013 WL 4009790,

at *7 (Iowa Ct. App. Aug. 7, 2013) (“[W]e find first that the use of a deposition

during cross-examination of a witness is not ‘introduced into evidence’ as

contemplated by the rule and is therefore not a cost subject to being assessed.”);

Doty v. Olson, No. 09-1852, 2010 WL 5050565, at *5 (Iowa Ct. App. Dec. 8, 2010)
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(“A successful party may not recover deposition costs under Rule 1.716 by ‘mere

oral reference’ to a witness’s deposition during trial.”).

As to the assessment of expert witness fees by the district court, the award

is governed by statute:

Witnesses called to testify only to an opinion founded on special
study or experience in any branch of science, or to make scientific or
professional examinations and state the result thereof, shall receive
additional compensation, to be fixed by the court, with reference to
the value of the time employed and the degree of learning or skill
required; but such additional compensation shall not exceed one
hundred fifty dollars per day while so employed.

Iowa Code § 622.72.

A. Costs of Dr. Schmitz’s Deposition

Chandler first challenges the court’s award of $852.88 for Dr. Schmitz’s

deposition. To support his contention, Chandler points to Iowa Rule of Civil

Procedure 1.716. According to Chandler, it was “improper” for the court to tax the

deposition cost against Chandler because the estate “did not read Dr. Schmitz’s

deposition into evidence in their case in chief or at any other time” and so

Dr. Schmitz’s testimony was not “necessarily incurred” by the estate.

Chandler relies on Miranda v. Said, No. 11-0552, 2012 WL 2410945, at *12

(Iowa Ct. App. June 27, 2012), aff’d on other grounds, 836 N.W.2d 8 (Iowa 2013),

to support his contention. But Miranda is distinguishable from the facts presented

here. In that case, the court of appeals affirmed the district court’s denial of the

losing party’s deposition costs where “[t]he only deposition offered and admitted

into evidence at trial was [the successful party’s expert], and his deposition was

offered in evidence by [the successful party].” Miranda, 2012 WL 2410945, at *12.

The court reasoned, “Thus, [the losing party] failed to offer evidence that the
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expenses incurred in taking [the expert]’s deposition were necessarily incurred.”

Id.

Here, the estate designated Dr. Schmitz as its expert witness, and the entire

video deposition of Dr. Schmitz was admitted at trial. See Long v. Jensen, 522

N.W.2d 621, 624 (Iowa 1994) (observing a “threshold requirement” “for a party to

recover the cost of a deposition at the conclusion of a trial” is that “the deposition

must be introduced into evidence either in whole or in part”). After the threshold

requirement involving using the deposition at trial is met, the reviewing court

affords the district court discretion to tax the deposition expense as a cost. See

Woody v. Machin, 380 N.W.2d 727, 730 (Iowa 1986).

The district court found:

Defendant seeks the costs for the deposition of Dr. Schmitz
pursuant to Iowa Code sections 625.1 and 625.14. Dr. Schmitz’s
testimony was taken by deposition by the defendant and presented
to the jury by video. The entire deposition was shown to the jury at
trial by video. The court finds the costs for the court reporter and
videographer were necessarily incurred for this deposition. The
deposition transcript cost $539.90 and the video deposition cost
$312.98. The court finds the defendant is entitled to these costs for
Dr. Schmitz’s deposition.

We find no abuse of the court’s discretion in taxing as costs the

videographer and transcript expenses for Dr. Schmitz’s deposition. See In re

Estate of Hetrick, No. 11-1702, 2012 WL 3860749, at *3–4 (Iowa Ct. App. Sept. 6,

2012) (affirming charge for videotaping services as necessary expense); Doty v.

Olson, No. 09-1852, 2010 WL 5050565, at * 5 (Iowa Ct. App. Dec. 8, 2010)

(affirming video deposition expense as a taxable cost to unsuccessful party). We

affirm on this issue.
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B. Cost of Plaintiff’s Deposition

The estate also requested $489.60 for the “deposition transcript of Cody

Chandler.” The district court awarded the estate a portion of its request—$100—

reasoning:

The defendant seeks the costs to take the deposition of the
plaintiff, Cody Chandler. His deposition was used at trial for some
impeachment and on redirect by plaintiff’s counsel but was not
offered in whole or part as evidence. The plaintiff testified in person
and was subject to cross-examination by the defendant in court. The
court finds defendant is entitled to a portion of the costs of
transcribing his deposition. The court awards the defendant $100.00
for plaintiff’s deposition.

On appeal, Chandler challenges the award of the $100 fee for his

deposition. The estate asserts that this claim was not preserved for our review

because neither the trial transcript nor the deposition transcript itself were made

part of the record. But both parties agree that the deposition was not admitted into

the record, a requirement for costs to be awarded. Because the deposition

transcript here was not offered or admitted at trial, we find the trial court abused its

discretion in awarding a portion of the plaintiff’s deposition cost and reverse the

taxation of that cost.

C. Expert Witness Fee

Finally, Chandler challenges the court’s award of $150 for Dr. Schmitz’s

expert witness fee. Chandler argues the court “erred in assessing these costs

against [him] as the expert’s testimony was not offered by the defense and

admitted upon the trial through the defense at any time.” We find no error in the

court’s decision to tax the statutory expert fee of $150. See Iowa Code § 622.72

(limiting expert-witness testimony compensation to a maximum of $150 per day).
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The award was within the statutory limit, and we find no support for Chandler’s

argument in the plain language of the statute.

IV. Conclusion

We affirm the award of $852.88 for Dr. Schmitz’s deposition fee, we reverse

the award of $100 for Chandler’s deposition fee, and we affirm the award of $150

for Dr. Schmitz’s expert witness fee. And we remand for correction of entry of the

judgment for costs in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

DIRECTIONS.